There’s currently a lot in the news about “incidental” surveillance of American citizens, and even more confusion on what “incidental” means. During a hearing earlier this week on Russian interference in the recent presidential election, several members of the House Intelligence Committee questioned FBI Director James Comey and NSA Director Admiral Mike Rogerson whether existing national security surveillance authorities adequately protect Americans.

Director Comey and Admiral Rogers may have sounded reassuring to Americans worried about basic privacy, but there is a lot of reason to worry. The government potentially collects tens of millions of communications of Americans, even in cases where it is supposedly targeting foreign persons. These incidental communications can be disseminated and used by government officials for a wide variety of purposes.

At the hearing this week, Director Comey and Admiral Rogers strongly defended Section 702 of FISA and other authorities, and they asserted that there were strong protections for Americans. But their responses only told half the story. Here are three key issues that were missing from the hearing and help explain how the NSA and FBI end up surveilling Americans.

1. The NSA often knows and intends to capture the communications of Americans when they are “targeting” individuals abroad.

“Incidental collection is when we are targeting a valid foreign target, for example, in the course of that targeting we either get a reference to a U.S. person or suddenly a U.S. person appears as part of the conversation. That's what we call incidental collecting.”- Admiral Rogers

“702 is about targeting non-U.S. persons overseas.”- Director Comey

The term “incidental” as it is used in the surveillance context is misleading. The term suggests that the NSA accidentally or inadvertently collects the information of Americans. The opposite is often true.

For instance, under Section 702, the government often knows at the time of collection that it is likely to sweep up Americans’ communications, such as when it intercepts a phone call with one end in the United States. In fact, mapping the connection between foreign targets and individuals in the U.S. is a primary purpose of the program. Nevertheless, the government performs a legal sleight of hand, defending its warrantless Section 702 surveillance under the theory that Americans are not the “target” of the spying. Regardless of the government’s intent, the Constitution protects Americans from unreasonable searches and searches, raising concerns regarding its practices under Section 702.

2. The vast majority of Americans’ private information is not “masked.”

“In our reporting then we will mask the identity of the individual. We use a phrase like U.S. person one or U.S. person two."- Admiral Rogers

In response to questions about whether Americans’ information collected for national security purposes could be disseminated, Admiral Rogers emphasized that Americans’ information is generally “masked” in intelligence reports. Some might infer from this statement that it would be rare for federal agencies to have access to personal information of Americans that is collected, including names, phone numbers, or e-mail addresses. Not true.

Rogers’s statements did not reflect two additional key facts. One, the masking procedures he referenced apply primarily to intelligence reports that are created by analyzing the information collected — not to the raw data itself. Thus raw data that is disseminated may still contain the personal details of Americans, including potentially the information of political officials. Two, agencies outside the NSA routinely access raw data collected for intelligence purposes. For example, in the case of Section 702, the FBI routinely searches through raw data using terms associated with Americans, even when investigating ordinary crimes with no connection to foreign intelligence. Also new NSA procedures allow over 15 other federal agencies to apply for access to data collected under Executive Oder 12333, which has been used by the NSA to collect information about millions of individuals with no court oversight.

3. Americans information is not automatically purged if it is “incidentally” collected.

“In some case, we will just purge the collect, make no reporting on it, not retain the data. It's incidental collection, it has no intelligence value and it wasn't the purpose of what we were doing.”- Admiral Rogers

Some might assume that the government automatically purges Americans’ information, if those individuals were not the “target” of the surveillance. However, information about Americans is not automatically purged when it is collected. The sheer number of communications collected by the NSA makes reviewing them in real-time impossible. Thus many communications remain in the government’s databases for five years by default. During this time period, it can be used for purposes that are unrelated to national security or the purpose for which it was collected.

The timing of the current debate is critical. At the end of the year, Congress must vote on whether to extend Section 702, a surveillance authority reportedly used to collect hundreds of millions of communications per year, over half of which may contain information regarding a US resident. Regardless of whether the allegations of improper surveillance of the Trump transition team prove to be true, members of Congress should be concerned about surveillance abuse and take steps to reform our surveillance laws accordingly.

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Anonymous

One of the root causes is correcting the "Citizens United" ruling which has transformed Congress into a full blown Oligarchy instead of the People's representatives. If Congress gave greater representation to "natural persons" (aka: humans) than "corporate person", the U.S. Senate would have voted differently this week. Congress needs to start representing humans again by returning to the Jimmy Carter era election funding.

The Free Texan

I suppose Trump "the citizen" is going to everything in his power to reign in corporate power? Hardly, he is an American Oligarc that believes the coporation is more powerful than the individual. It's not congress, it's our Comsitution and Federal Laws that guarantee individual citizen rights to corporate entities. Trump is their puppet and will continue to make sure corporates survive and rule the people. Check yourself, individual rights in our America are now the domain of racists like Jeff Sessions. "White America Paradise" should be the rebuplican motto. Good job whites! We're now South Africa. Minority rule the Majority.

April 5, 2017

12:56 AM

Me@.gov

Here's one for ya. I am against government control of almost any kind. I don't think the government can wipe its own ass much less take care of mine.

But I realize such large organizations can control large amounts of unique data. Meaning, every citizen (at least legal) has a unique SSN. If you have a drivers license in any state, it has a unique number. My point is, I wish the government would offer unique email/electronic IDs to all citizens.

You hate spam, get a gov id email, you hate malware, get a gov id. I perfectly understand what rights I give up with such an id. However, I'd use one for all my finances and a google for POF. Get it.

April 27, 2017

8:58 PM

Anonymous

The ACLU should make a concerted effort to expand and clarify the definition a of a "governing entity" under the First and Fourth Amendments (along with the federal statutes that clarify those amendments).

Similar to public roads, Americans are forced to use modern electronic communications and it's infrastructure. It's nearly impossible to get a job or operate a business without these public accomadations so shouldn't private companies, acting as a governing entity, be restrained by the U.S. Constitution and it's supporting federal statutes?

For example: internet providers penalizing or obstructing users for perfectly legal First Amendment activities. Since Americans are forced to use the technology are they purely private companies?

So-called Conservatives supported the legalese of calling torture "enhanced interrogations" so this is far more legitimate and affects every American.

Ron

Oh, the delicious irony!

Devin Nunes, Chairman of the House Intelligence Committee, is now in hot water all around (even with Republicats) for acting like a White House lapdog and running straight to Trump himself (and to the press) to tell him/them the latest tidbits he had learned about the FBI's investigation (into the Trump campaign's contacts with Russians) *before* he even shared that info with his fellow Intelligence Committee members. (As a result, even John McCain is now saying that there has to be an independent outside investigation... because Nunes' independence and credibility are now totally compromised.)

So anyway, the funny thing is that the factoid that Nunes recently blabbed to the media... and the one that has gotten the most headlines... is that the communications between various Trump campaign people and various Russians were collected *and* associated with the names of those specific Trump campaign people as part of what the NSA and the intelligence community calls "incidental collection", i.e. the NSA was actually just hoovering up the communications of the Russians, but as a result, they swept up the communications also of the Trump campaign staffers. And (hehe) "unfortunately" the "minimization" procedures which are supposed to keep the identifications of U.S. citizens who are parties to such communications "secret" were, apparently, not followed. (Like they apparently aren't, in most cases.)

OK, so here is the punchline, drawn from the EFF's "2016 In Review" report (on the EFF's attempts to reign in goverment mass surveillance):

... "In past years, the House passed similar measures from Reps. Thomas Massie and Zoe Lofgren to prevent warrantless searches of Americans' information and keep the intelligence community from undermining encryption, including by an overwhelming 293-123 vote in 2014. But the vote fell short of the needed majority in 2016 after some lawmakers, including House Intelligence Committee Chairman DEVIN NUNES, launched a campaign against the amendment, dishonestly tying it to the tragedy in Orlando."

So, basically, it was Nunes himself who lobbied to make sure that the NSA et al would continue to be able to get away with massive violations of Fourth Amendment privacy protections (of U.S. citizens whose communications were and are "incidentally collected").

It is now that exact same lack of safeguards and meaningful judicial review that has ensnared the political fortunes of Nunes' own political master over at 1600 Pennsylvania Avenue.

Anonymous

NSA, CIA and the FBI are out of control, but that's the way we are going and it is expected, They use terrorism as an excuse to spy on us. Wake up and smell the coffee, if we don't have outrage today what will tomorrow bring. Stop the Government from spying on everybody. Use the search engine that does not change its results for political reasons and respects your privacy, just good old fashion results that are not tracked. Lookseek com The world is over as we once new it. Thank god for Wikileaks maybe the information can save us

Anonymous

Rank and file police officers, intelligence personnel and other national security subordinates TAKE ORDERS from the top management of their agencies.

If the top management of these agencies, many essentially politicians, are disloyal to their supreme loyalty oath, oath of office, to follow the U.S. Constitution - the top managers dictate unconstitutional orders to their subordinates.

The ACLU should litigate a "Writ of Mandamus" to force these top managers to start honoring their employment contract - the oath of office - which is also federal law under Title 5 US Code 3331.

If the top managers have fidelty to their constitutional oath, so will the ORDER TAKERS!

Anonymous

In the 21st Century, the greatest threat to civil liberties and privacy may be well-meaning, but controlling - Parents!

Many parents, unintentionally, are harming the next generation of voters, citizens and leaders by subjecting their kids to 24/7 surveillance and tracking. In order to have that smartphone, some parents are literally track their children like a totalitarian regime - even penalizing their kids if they refuse to be tracked.

In a Constitutional Democratic Republic, where voters self-govern within constitutional bounds, if Americans voluntarily submit to totalitarianism without even a whimper - there will be no privacy or accountability for illegal spying by anyone.

Some insecure and controlling adults also subject their spouses to similar treatment. If this technology existed in the 1950's, it's very likely that the women's rights movement would have never happened.

The ACLU should educate well-meaning parents about the dangers of controlling and smothering the privacy of their own children.

Anonymous

I thought information was just released showing that constant surveillance is taking place on everyone? All phone, keystrokes, conversations, email, microphones and cameras. Not to mention, satellite, aerial, traffic light cameras, social media network collusion, and military technology that is used here by private firms for police departments and more.

None of this is used for criminals. They even pretend not to know how to track and find criminals. Do you understand what that means? Furthermore, the previous director of nsa and cia said in a talk after asserting they don't need permission to surveil, that they "don't just listen to bad people, they listen to interesting people". What is "interesting"?

What is wrong here? Do you ignore all of this because you want to be controlled? Or, you don't understand liberty because you are spoiled? Do you agree to normalize 100% surveillance on citizens? imo, no convenience or smartphone is worth that, and I do love technology!

Anonymous

The gross irony is that the ACLU essentially promotes and defends the "Oath of Office" of police officers, the military, national security agencies and their contractors to follow and uphold the U.S. Constitution. An American official has no authority whatsoever until they agree to follow their oath to the U.S. Constitution.

It seems that many, not all, officials are good people with good intentions but have an "ends justify the means" mindset - which the polar opposite of the Oath of Office.

The Oath of Office means that the ends NEVER justify unconstitutional means. If the U.S. Constitution is fundamentally flawed we amend it, we don't violate it's legal boundaries.

In a nation with guaranteed individual freedoms and liberties, the police and other officials aren't allowed to practice totalitarism and violate the constitutional rule of law - even if it is perceived to make us safer and reduce crime - they simply never has such authority under the U.S. Constitution.

The ACLU is not the enemy of any government agency, they are actually upholding the Oath of Office that each official promised to uphold.